Bellows v. Copp

20 N.H. 492 | Superior Court of New Hampshire | 1846

Gilchrist, J.

There are several objections presented in this case, which must be examined. The plaintiff derives his title to the land described in his writ from a royal grant, under Governor "Wentworth to Thomas Martin, dated the 25th day of January, 1773, which was produced and proved. Upon this the defendant interposes the objection that no proof is made of the existence of such a person as Thomas Martin, named as the grantee in the deed. The answer to this objection is, that the evidence which proved the execution of the grant established of necessity the existence of the grantee. The law which raises a presumption in favor of the regular execution of deeds that are in the chain of the title of the party producing them, and which bear the ordinary indications of having been regularly executed, acknowledged and recorded, involves in that presumption the existence of all the parties, witnesses and magistrates, whose agency is necessary in the transactions so proved.

Another objection is to the title supposed to have been acquired under the grant, which, it is said, fails for the want of evidence of a compliance, on the part of the grantee and those claiming under him, with the conditions annexed to the grant. Whether there has been such a compliance is a question that cannot properly be tried in this form, for the reason that a grantee of all the right and title which the State had after the grant to Martin, does not acquire the right to take advantage of such noncompliance, as is supposed, and to exact the forfeiture; and, also, for the reason that such a forfeiture must be claimed, and pursued by proceedings instituted for the express purpose. Sperry v. Sperry, 8 N. H. 477.

No entry was necessary on the part of Thomas Martin, or others, under such a grant, for the purpose of acquiring a seizin of the land, it having been held that a grant, by a government competent to make it, carries with it seizin. The point arose in Enfield v. Permit, 8 N. H. 512.

Neither does such a grant lose its eifeet by reason of an omission of the party purchasing to enter upon and use the land. If any such condition were annexed to the grant, advantage must be taken as for the breach of conditions in general. If not, and there be no adverse occupation, there is no reason which requires the grantee to use it otherwise than he is required to use other land — for the preservation of his title.

That the legislature have since omitted t& recognize the grant, may be owing to many other causes than a disposition to avoid it. Such a grant does not require for its preservation repeated acts of recognition, any more than does the grant of an individual. "When it was made, the title of government to it, as property, passed; nor could it return again, unless by escheat, without some act for its recovery. The point arose in Bellows v. Elkins. And it must be held here, in conformity with the decision in that case, that the omission to include the granted territory in any of the apportionment acts, whether such omission were accidental, or caused by an intention on the part of government to vacate the charter, was wholly without any such effect in law, to disturb the rights of parties acquired under the charter.

So far as the case discloses the nature of the objections made by the defendant to the use of copies, they appear to be without just foundation. Copies of deeds and other conveyances in the chain of the party’s title who introduces them, are the common evidences of the transmission of the title, and when properly certified, being in the proper form, are competent as such. An original deed, appearing, by an official certificate upon it, to have been regularly recorded, is upon the same footing, and like a copy admitted in common practice. Pollard v. Melvin, 10 N. H. 554.

An objection is made, that the caption of Planish off’s deposition is not legal; but the case does not show the nature of the defect pointed out, and it is too late for parties to specify their objections after the case is removed to this court. They should be distinctly stated, that they may be noted at the trial. The general and vague objection that the caption is illegal, cannot prevail.

Of the official character and qualification of one who assumes to take a deposition in a foreign jurisdiction, it is held that some evidence is necessaiy; but proof that he exercises the functions of a magistrate who is ordinarily qualified to take a deposition, is sufficient evidence of his official character, prima facie, to entitle the party to read the deposition. The reason appears to he applicable to the case of an acknowledgment of a deed. The title by which one in a foreign State holds an office whose functions he publicly and habitually discharges, need not be made the subject of inquiry, unless occasion is furnished by some evidence that the office is held by usurpation; the general rule being that all who are proved to have acted as public officers, are presumed to have been duly appointed as such, until the contrary appears. Gr. Ev., secs. 83, 92. The evidence that the person assuming to be a magistrate is such, de facto, may as well come from his own testimony as from any other witness. He has no greater inducement to testify in favor of the validity of his own acts, than has an agent who has compromised himself by exercising the duties and functions pertaining to that relation. Steele v. Stone, 12 N. H. 90.

The will of Brown contains some matters of misdescription relating to the grant in question. It describes it as upon Connecticut river, and as called the Shelburne Addition; but these matters are stated merely as impressions at the moment upon the mind of the testator, and are accompanied with references to other sources of information, that indicate clearly that it is not his intention to limit the grant to that description. If, therefore, enough is contained in the will to identify the land, it will pass, notwithstanding the error of the testator in the particulars adverted to. Shep. Touch. 246, and note 1. The land was correctly described in the will as to its name of “location,” the quantity embraced, and the party from whom he derived it. These were properly left to the jury to be met by such evidence as the defendant might adduce to show that other land existed to which the description might apply.

The exceptions taken by the defendant to the plaintiff’s title are, therefore, overruled.

The plaintiff excepted to the rule of the court below, allowing the defendant to file a brief statement at an advanced state of the progress of the cause; but this was clearly within the discretion of the court, and it has often been decided that this court will not revise such matters of practice.

Pinkham’s Grant embraced, by its terms, such land only as the State owned at the time of making it. The resolves, and the deed of the treasurer, made in pursuance of them, are explicit on that point. Martin’s Grant, having been earlier, was not, of course, cut in upon by that made to Pinkham. The sales by public officers of “Pinkham’s Grant ” did not, therefore, disturb the title to any lands which had been previously conveyed by the State.

The statute of betterments requires that the party claiming an allowance for them must have been in possession six years, by virtue of a supposed legal title, under a bona fide purchase.

The instructions of the court tvere, that the acts and resolves of the legislature, conveying to Pinkham the lands described, and his entry and survey under the grant, with the subsequent clearing and occupancy till 1839, without notice of Martin’s Grant, amounted to a sufficient occupation of the premises, under a supposed legal title, to give Pinkham, and those claiming under him, a right to betterments. The statute requires that the possession should be in good faith, and under a supposed legal title; and there is evidence which rendered it necessary that the jury should have inquired whether the possession in this case bore that character. This inquiry was not directed by the instructions, and the case must, therefore, be sent back for trial upon this point. The evidence that Pink-ham, as early as 1834, knew of the existence of Martin’s Grant, may not. be conclusive against him upon the question of good faith; but was sufficient to raise the question, and, independently of the fact of there being evidence on both sides, the statute requires the good faith of the party to be established by a verdict. To settle this, therefore, there must be a

New trial granted.